NAIROBI, Kenya — The Employment and Labour Relations Court has declared the recruitment process at the newly formed Social Health Authority (SHA) unconstitutional, delivering a significant setback to former staff of the defunct National Hospital Insurance Fund (NHIF).
In a ruling issued on May 29, Justice Byram Ongaya found that SHA’s hiring process failed to comply with the Constitution and the law, citing lack of transparency, fairness, and public participation.
The judgment stemmed from a petition filed by a Kenyan citizen, Said Omar Abdille, who challenged the recruitment exercise, accusing SHA of discriminating against qualified candidates and bypassing competitive and open hiring procedures.
“All recruitment by public institutions must strictly comply with Article 232 of the Constitution,” Justice Ongaya said, referring to the section that outlines the values and principles of public service, including merit, accountability, and transparency.
The court found that the SHA recruitment process had violated the Employment Act and undermined public confidence in state institutions.
Justice Ongaya issued a declaration that the recruitment process was discriminatory and unconstitutional, noting that it violated principles of fair competition and equality of opportunity.
Crucially, the court also barred preferential treatment for former NHIF staff, ruling that they cannot be considered internal candidates under the new legal framework.
This decision effectively blocks any automatic transition of NHIF employees into SHA without a fresh, competitive process.
“The court finds that any limitation of eligibility for positions to former NHIF staff is unconstitutional,” Justice Ongaya ruled. “All appointments must be open and subject to fair competition.”
The petitioner, Abdille, had argued that SHA’s recruitment was shrouded in secrecy and denied equal opportunity to thousands of qualified Kenyans.
He called for the suspension of the process, saying it lacked public advertisement, competitive interviews, or adherence to administrative justice.
Justice Ongaya upheld the petition and ordered a new recruitment process that is transparent, merit-based, and in line with constitutional requirements.
